Pending a Universal Declaration of Human Responsibilities, let's maximise on the climate negotiations to make real headway in responsibility law: legal proposals from the Collège de France

Thus the malleability of the law enabled judges to adapt it faster than political authorities in order to deal with new situations. In the event of a shortcoming by the latter, judges are able to anticipate and create new forms of regulation.

The draft of the Universal Declaration of Human Responsibilities (UDHR) stipulates: “Responsibility involves taking into account the immediate or delayed effects of one’s actions, to prevent or compensate for damage done, whether said damage be voluntary or not, and whether or not it affects legal subjects. It applies to all areas of human activity, and to all scales of time and space. This responsibility is imprescriptible when the damage is irreversible.”

Based on this definition, it is evident that the human societies and the governments that represent them are taking an entirely irresponsible approach to the climate and the biosphere. And to quote the UDHR again, “the scale and irreversibility of the interdependence that has been created between human beings, between societies and between humanity and the biosphere represents a radically new situation in the history of our species, transforming humankind, irrevocably, into a community bound together by a common fate”: this makes responsibility nothing but a global issue.

Yet, as highlighted by the climate negotiations, we are currently facing two major obstacles: the inexistence of any true global governance; and the compartmentalisation of legal systems, which remain inextricably tied to countries' sovereignty. Governments' are consequently not bound by a collective responsibility to honour their commitments to keep global warming below 2°C by the end of the century, nor are governments' commitments translated into clear, legally binding terms.

It seems François Hollande, who just called for an “Environmental Security Council” within the UN, is well aware of this gap. In regards to the recent controversy between John Kerry and Laurent Fabius on whether or not the Paris agreement would be binding, the level of confusion was very revealing: can a consensus only be reached once the agreement is void of any commitments or meaning?

This is where the work programme of two successive occupants of the Chair of International Law at the Collège de France', Mireille Delmas Marty and Alain Supiot, two renowned legal experts, is of such importance. The programme, entitled “Taking Responsibility Seriously”, along with the “12 legal proposals for the Paris Climate Conference” (attached), has been a way to explore and draw on the existent legal resources that could be put to use in order to bring real meaning to the commitments made in Paris, given the fact that currently no UDHR has been adopted by the international community.

As Mireille Delmas Marty remarks in her introduction to these proposals, the climate issue has become the very symbol of global interdependence, hence the universal dimension of our responsibility. It thus represents “a unique opportunity to take heed of our common fate and to test our ability to change the direction of global governance before it's too late”.

The issue goes even beyond the climate: “an ambitious climate agreement would not only aid in protecting the environment and our ecosystem, but would also play a more extensive role in preparing the future of humanity... it is undoubtedly the only area where it will be possible to reach an agreement on a new global governance model. On the other hand, failure of the Paris Climate Conference will herald ongoing chaos, as it seems unlikely that any other sensitive global issue could ever result in widespread agreement”. It could not be better said at a time when the Paris attacks reveal the inadequacy of international law in the face of globalised terrorism. (see also interview of Mirelle Delmas Marty in Le Monde of 18 November).

Alain Supiot's brilliant introduction to the book Taking Responsibility Seriously (Presses Universitaires de France, November 2015), which provides an overview of the work programme, situates this legal thinking in its historical context. By drawing a parallel with labour law, he recalls how in the late 19th century, the industrial revolution required that the concept of responsibility be significantly expanded, which resulted in our current labour law: it was the judge who guided the lawmaker, updating and adapting old legal concepts to new realities. Thus the malleability of the legal concepts enabled judges to adapt it faster than political authorities in order to deal with new situations. In the event of a shortcoming by the latter, judges are able to anticipate and create new forms of regulation.

This is exactly the situation we find ourselves in today. Confronted with irreversible globalisation, the community of government leaders has been incapable of creating an efficient form of global regulation that ensures the biosphere's integrity and both monetary and social stability. It has, in what appears to be an act of voluntary servitude, put itself in the hands of the only powers whose scale is equal to that of globalisation, transnational companies: rather abdication than cooperation. Alain Supiot convincingly illustrates that in such conditions, without international regulations governing economic activities, in a context where countries are competing for investments, international relations have become feudal in their approach: allegiance in exchange for protection, whether it be dissymmetrical relations between countries or relations between transnational companies, their subsidiaries, subcontractors and suppliers.

Yet by creatively and competently drawing on its own available resources, the law can address these new realities by considering the consequences of these new forms of power, as, to quote again the UDHR “Responsibility is relative to one's knowledge and power,” Companies cannot demand autonomy while claiming to adhere to some voluntary commitments of Corporate Social Responsibility (CSR); just as countries cannot claim to preserve their sovereignty while confining themselves to voluntary commitments that are not legally binding, whether they concern the climate or global terrorism.

The Collège de France proposals are the result of dialogue between prominent legal experts and judges from France, the USA, China, Italy and Great Britain. Taking the angle that I have just outlined, they attempt to thoroughly explore the potential levers in the current legislation that would force countries and transnational companies to assume their objective responsibility. The proposals are divided into two sections: - the legal responsibilities of countries and transnational companies in regards to the climate; - a broader overview of the conditions of justiciability of transnational companies in proportion to their power and societal impact, and the need to incorporate social and environmental issues into international economic law.

A group of French jurists have also published a book «proposals for a legal framework to fight against climate change”, http://www.ceric-aix.univ-cezanne.fr/autres/page-cop21/dalloz.html, which shows the need to combine the different kinds of legislation in order to face the new dimension of the world challenges.

No matter how creative they may be, judges cannot act alone: they are a link – albeit essential – but only one in the three steps of a legal process. Who is responsible? Who can set responsibility-based action into motion? Who is the judge of responsibility? Thus these proposals, where prominent legal experts illustrate what can be done even in the current framework of international law, will not have an impact unless they are wielded by civil society. This is why I would like to share them with you.

They are no more than a second best, as their authors know very well. They should not be viewed as a conclusive answer but as a step in the direction of an international law that reflects our interdependent relations and planetary co-responsibility. This involves urgently adopting the Universal Declaration of Human Responsibilities and defining global commons – right now the climate doesn't even exist as far as the law is concerned! – as well as a steward of these commons.